* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 26, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41696

Summary Calendar

EARL G. WILLIAMS,

Plaintiff-Appellant,

versus

Lieutenant THOMAS R. DAY; UNIVERSITY OF TEXAS MEDICAL

BRANCH GALVESTON TEXAS, Correctional Managed Care,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:03-CV-221 

--------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Earl G. Williams, Texas prisoner # 710963, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint against
No. 05-41696

-2-

Lieutenant Thomas R. Day and the University of Texas Medical Branch

at Galveston (UTMB).

Williams contends that the district court erred when it dismissed

his complaint for failure to state a claim and as frivolous. Because the

district court dismissed Williams’s complaint both as frivolous and for

failure to state a claim, our review is de novo. See Geiger v. Jowers,

404 F.3d 371, 373 (5th Cir. 2005). 

Viewing the factual allegations in his complaint as true, Williams

failed to state a claim of excessive force against Lt. Day sufficient to

overcome the defense of qualified immunity. Although the Eighth

Amendment guarantees the right to be free from cruel and unusual

punishment, the factual allegations in Williams’s complaint did not

demonstrate that Lt. Day’s conduct was made maliciously with the

intent to cause harm. See Flores v. City of Palacios, 381 F.3d 391,

393-95 (5th Cir. 2004); Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 

Williams also contends that the district court erred when it

dismissed his complaint without providing him an opportunity to

conduct discovery or present evidence in support of his claims. 

Because the district court did not err in holding that Williams’s

allegations failed to rise to the level of a constitutional violation or
No. 05-41696

-3-

surmount Lt. Day’s entitlement to qualified immunity, Williams was not

entitled to discovery in the district court. See Jacquez v. Procunier,

801 F.2d 789, 791 (5th Cir. 1986). Further, because the district court

assumed Williams’s factual allegations to be true, there was no need to

provide evidentiary support for those allegations. See

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.

1993).

Williams also contends that the district court erred when it

denied his motions for the appointment of counsel. Williams failed to

demonstrate the extraordinary circumstances necessary to justify the

appointment of counsel. Therefore, the district court’s implicit denial

of his motions for the appointment of counsel was not an abuse of

discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).

Finally, aside from a request that Correctional Officer Michelle J.

Woolsey be reinstated as a defendant and conclusional allegations that

the UTMB disposed of his medical records and refused his request for

physical therapy, Williams does not challenge the district court’s

dismissal of his claims against Officer Woolsey or the UTMB. Williams

also does not challenge the denial of his motion for leave to amend his

complaint to add Warden Richard Trinci and Assistant Warden Dirk
No. 05-41696

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Lorimer as defendants or the dismissal of his retaliation claims. 

Therefore, these claims are deemed abandoned. See Hughes v.

Johnson, 191 F.3d 607, 613 (5th Cir. 1999).

Accordingly, the district court’s judgment is AFFIRMED, and

Williams’s motion for the appointment of counsel is DENIED.